IN THE HIGH COURT OF TANZANIA

TEMEKE SUB-REGISTRY

(ONE STOP JUDICIAL CENTRE)

CIVIL APPEAL NO. 17 OF 2022

(Originating from Probate Cause No. 53 of 2021 of Kinondoni District Court).

ADELICIOUS CRISPINE NGOW I.................................... APPELANT

VERSUS

IBRAHIM MOHAMED NAWAB.................................... RESPONDENT

JUDGMENT
Date of last order: 21/06/2023
Date of judgment: 24/07/2023

OMARI J.,

This Appeal arises from the Probate and Administration Cause No. 53 of 2021

at Kinondoni District Court where in the Appellant petitioned for the letters of

administration of the estate of the late Aurelia Chrispin Nawabu, who is her

sister. Ibrahim Mohamed Nawab, the husband of the deceased filed a caveat

objecting the Petitioner as a stranger to the deceased's estate, stating he had

lived with the deceased for 26 years and all the properties have been found

through their joint efforts also because they have not been blessed with a

child in their marriage he is the only heir and the right person to administer

the assets of the deceased.

The district court appointed him to be the Administrator of the estate. It stated

that the brothers and sisters of the deceased as remote beneficiaries are
entitled to receive a portion of the deceased's personal non-matrimonial

assets which are bank accounts and employment benefits. The Appellant was

dissatisfied with that decision, so she appealed to this court on the following

grounds:

1. That trial magistrate erred in law and fact by failure to determine the

applicable law on the estate of the deceased hence reached into wrong

conclusions and erroneous decision

2. That the trial magistrate erred in law and fact by appointing the

Caveator as administrator of the estate of the deceased despite not

being selected by any clan meeting and the rival relationship he has

with other heirs to the estate.

3. That the trial magistrate failed to acknowledge proper shares of the

beneficiaries to the estate as illustrated under the Indian succession act.

4. That trial magistrate erred in law and fact by distributing shares of the

estate to the beneficiaries without legal justification, the role reserved

for the administrator of the estate.

5. That trial magistrate erred in law and fact by declaring Landed

properties of the estate of the deceased as matrimonial properties and

that they were acquired jointly, with no evidence on the record

vindicating the same whereas this is probate and not matrimonial cause.
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 6. That trial magistrate erred in law and fact by ruling that the landed

properties were jointly acquired and owned by the caveator and the

deceased while evidence on record suggest the properties were

exclusively owned by the deceased.

7. That trial magistrate failed to interpret the evidence presented in court

and relied on the weak evidence adduced in the court by the caveator

contrary to the rules of evidence.

8. That trial magistrate has failed consider the final submissions of

advocates for the parties despite an order to file final submissions by

the honourable trial court.

On the date set for hearing the Appellant was represented by Fratern Munale,

learned advocate and the Respondent had the services of Samson Joseph

Nnko, also learned advocate. The appeal was disposed by way of written

submissions.

Before analysing the grounds of appeal, two points raised in the Respondent's

submission need to be determined. The first one is that the Appellant has no

locus standi. The Respondent's counsel submitted that the Appellant has no

locus stand in both trial court and before this appellate court. He asserted
that before a court make its decision it must contemplate that the parties

suing or appealing has any interest or locus standi. The counsel cited this

court's decision in Mary Tuvate v. Grace Mwambeja and Mwabha

Andrea Mwasote, Land Appeal No. 42 of 2019 where the term was

extensively discussed.

In response the Appellant's counsel contended that the first point of law

raised is devoid of merit for the reason that it was not raised in the trial court

though this court is not precluded from determining it. He argued that by

virtue of section 33 of the Probate and Administration of Estates Act, Cap 352

R.E 2019 (the PAEA) the law provides on who maybe be granted with letters

of administration of estates of the deceased and, where a court has to appoint

any other person it will consider the amount of interest, safety of the estate

and probability of the estate been properly administered. Under these

circumstances anyone can apply for letters of administration and be granted

as long as they fit into the circumstances. He added that the proceedings in

the trial court turned into a normal civil suit by virtue of section 52(b) of the

PAEA, therefore, the judgment therefrom can be appealed by the parties.

Moreover, all the cases cited by the respondent are not applicable in the

circumstances of this case. In conclusion on the first point he stated that the

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Respondent has failed to show how the Appellant has no iocu standi based

on the circumstances.

As regards this contention it is my considered view that as rightly submitted

by the Appellant's counsel the Appellant became a party to the proceedings

by virtue of her seeking to establish she has interest in the estate and when

she Petitioned for letters of administration in the trial court, albeit

unsuccessful. It is trite law that the decision can be appealed from. However,

other than reproducing long quotations from the case of Mary Tuvate v.

Grace Mwambeja and Mwabha Andrea Mwasote (supra) the

Respondent's counsel has done a poor job of convincing this court how the

Appellant is not with locus standi. Thus, this point is overruled.

The second point of law is on the application of the Indian Succession Act

1865 (the ISA 1865) in the administration of the deceased's estate; however,

I shall not go into this this point for I do not see it as a point of law that can

be determined in this manner.

Segueing back into the parties' submissions on the grounds of appeal and the

record the issue for this court to determine is whether this Appeal is

meritorious or otherwise.

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The Appellant's counsel abandoned her eighth ground of appeal and sought

to consolidate the third and fourth grounds of appeal into a single ground and

the fifth and sixth into a single ground, basically leaving five grounds of appeal

were submitted on.

On the first ground the counsel for the Appellant submitted that the trial

magistrate erred in law and fact by failure to determine the applicable law

hence reached into wrong conclusion and erroneous decision. He avered that

the position of the law is that before a court determine any issue in a

contentious proceeding in respect of the estate of the deceased it has to

determine the law applicable in the administration of that estate and the case

of Re Innocent Mbilinyi 1969[HCD] 283 which was restated by this court

in the case of Benson Benjamin Mengi and Others v. Abdiel Regnald

Mengi and Another, Probate and Administration Cause No. 29 of 2019.

Counsel stated that in the present case at page 5 of the judgment the trial

magistrate started to determine issues without determining the law

applicable. He stated further that the position demonstrated under section

33(1) of the PAEA is that the court is at discretion to appoint administrator

who according to the rules of distribution would get a share on the estate,

and the same is amplified under section 88 of the PAEA, that the court to be

satisfied in the law applicable according to the intentions of the deceased,

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however, the trial magistrate did not adhere to it, therefore this being a fatal

irregularity it qualifies to nullify the district court's decision.

In response to the first ground of appeal the Respondent through counsel

submitted that the learned magistrate clearly adhered to the law as he

followed the procedure prescribed in section 59 of the PAEA read together

with Rule 82 of the Probate Rules 1963 as well as section 52 of the PAEA. He

maintained that none of the parties ever introduced the question of the law

to be applied as was in the case of Re Innocent Mbilinyi (supra)and that

of Benson Benjamin Mengi and Others v. Abdiel Regnald Mengi and

Another (supra). In both cases the issue of the law applicable arose as an

issue to be determined due to the nature of the cases, this was not so in the

case at hand. I am of the considered view that this was not a matter that

was determined or at issue in the trial court thus cannot be raised on appeal.

In the case of Kassim Salum Mnyukwa v. The Republic, Criminal Appeal

No. 405 of 2019 and that of Godfrey Wilson v. The Republic, Criminal

Appeal No. 168 of 2019 the court was of the view that a matter that was not

at issue at the trial cannot be brought up at the appeal stage, see also

Richard Majenga vs Specioza Sylivester, Civil Appeal No. 208 of 2018

where the Court of Appeal held:

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 'It is a settled principle o f the law that at an appellate
level the court only deals with matters that have been
decided upon by the lower court.'

Therefore, the Appellant's first ground of appeal is dismissed for the reasons

already stated.

The second ground of the appeal is to the effect that the trial magistrate

appointed the Caveator as the Administrator despite not being selected by

any clan meeting and the rival relationship he has with other heirs. Counsel

submitted that under section 33(1) of the PAEA, appointment of the

administrator of the estate may be granted to any person who is entitled to

the share of the estate whether partly or whole. Therefore, according to the

ISA 1865, the Appellant as the sister of the deseased is an heir to the estate

entitled to the same hence she is qualified under the law to be appointed an

administratrix of the said estate. Fortifying his argument with reference to the

Court of Appeal case of Joseph Shumbusho v. Mary Grace Tigerwa and

Others, Civil Appeal No 138 of 2016 counsel argued that in this case there is

no reasons as to why the trial magistrate refused to appoint the Appellant as

Administratrix despite been selected by the clan meeting.

He argued that, instead the magistrate erroneously used the principle that

death of one spouse the property devolves to the surviving spouse if the

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property owned jointly. This according to him was done without any evidence

that the properties are matrimonial and without assessing the contribution of

the Respondent to said properties before appointing the Respondent.

Moreover, the record depicts it was also testified by the Appellant that

Respondent petitioned for letters of administration without involving other

heirs and attempted to distribute the estate to himself as per Exhibit P-3,

therefore evidencing that he is unfair and the estate is not safe in his hands.

Submitting on the second ground of appeal counsel for the Respondent

argued that it is a trite but true observation that section 33(1) of the PAEA

grants that appointment of an administrator of the estate may be granted to

any person who is entitled to a share on the estate whether partly or whole.

The Appellant being a sister of the deceased claims that according to the ISA

1865 she is an heir and has been all the time trying to tie herself to the

property of the deceased. However, counsel argues that she has failed to

provide any provisions of the law which supports her contention. He avers

that he has been too unable to find one and the case of Joseph Shumbusho

v. Mary Grace Tigerwa and Others(supra) cited by the Appellant does not

support that position. He then went on to vehemently argue that the

Respondent by virtue of the ISA 1865 section 20, 21 and 22 and 24 and

consideration of degrees of consanguinity, lineal consanguinity and collateral

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consanguinity and that he and his wife not having a descendant then the

Table of Consanguinity under Item 3 would apply to their estate.

On the argument that the magistrate should have appointed the Appellant

after being selected by the clan meeting is erroneous. Counsel submitted that

the said meeting was conducted by the members of Ngowi clan, the deceased

became a member of the Respondent's clan by virtue of her marriage and the

Ngowi clan has no authority over matters of Nawab clan unless invited by

them. Therefore, the Respondent argued that the magistrate acted properly

by declining the Appellant to be administratrix of the disputed estate.

He went on to argue that the Probate Rules 1963 specifically, Rule 39 sets

forth the conditions to be observed by any Petitioner for letters of

administration with regards to documents to be attached to the Petition, the

minutes of the clan meeting is not among the listed document. The

Respondent's counsel also made reference to this court's decision in In The

Matter Of the Estate of the Late John Peter Silveira and In the Matter

Of Petition for Grant of Probate of the Late John Peter Silveira by

Francisca Haruweru Silveira, and In The Matter Of Caveat by Gerald

Francis Silveira And Solomon John Silveira, Probate and Administration

Cause No. 23 and 24 of 2019 wherein this court decided that the Petitioner
for letters of administration needs the consent of the heirs and not minutes

from a clan meeting. Counsel concluded that the trial court's judgment could

not be faulted on this ground.

It is my considered view that the Appellant is mistaken as indeed as provided

in In The Matter Of the Estate of the Late John Peter Silveira and In

the Matter Of Petition for Grant of Probate of the Late John Peter

Silveira by Francisca Haruweru Silveira, and In The Matter Of Caveat

by Gerald Francis Silveira And Solomon John Silveira (supra) and many

other decisions there is no requirement of a person being nominated by a clan

meeting for them to be granted letters of administration. Furthermore, the

Respondent raises an interesting point that the clan that met and nominated

the Appellant was the Ngowi clan and not that of Nawab. And, that the

deceased had become a member of the Nawab clan by virtue of marriage.

However, I reserve discussion on this point for a later date. For now, it suffices

to say the trial court cannot be faulted for appointing the Respondent whilst

he had no minutes of the clan/family meeting.

On the third ground which is the consolidated third and fourth grounds of

appeal the Appellant's counsel submitted that in the judgment at pages 7 and

8 the magistrate distributed the shares to the heirs by specifically mentioning

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that the relatives of the deceased should only get money in the bank account

and employment benefits and all landed properties be devolved to the

Respondent.

Therefore, according to counsel the magistrate distributed the estate and

limited the heirs to inherit. Counsel argued that the law under section 108(1)

of the PAEA is that, the duty to collect and distribute the estate to the heirs is

only reserved to the Administrator and not the court also citing the Court of

Appeal's decision in the case of Monica Nyamakare Jigamba v. Mugeta

Bwire Bhakome and another, Civil Application No. 199/01 of 2019.

Counsel added that in the case at hand the deceased professed Christianity

therefore the law applicable in accordance to her mode of life is the ISA 1865,

that is where the proper shares of the heirs should be ascertained if the

question is posed to the court's determination.

Resisting the third ground of appeal as consolidated the Respondent's counsel

argued that what the magistrate did was to order the Administrator to divide

the property to beneficiaries and not distributing the estate, thus this is a false

accusation. On the Appellant's assertion that the trial magistrate failed to

acknowledge proper shares of the beneficiaries as per the ISA 1865 the

Respondent counsel stressed that the Appellant is not aware and might not
have seen let alone read the ISA 1865. In the light of the case of Juma Rhisi

Nyanyange v. Shekhe Faris [1999] TLR 29 he argued that, the court held

that property jointly owned between spouses, death of one spouse the

property devolves to the surviving spouse, which is also buttressed by section

26 and section 43 of the ISA 1865.

The Respondent's submission disputed the findings by the trial magistrate that

the brothers and sisters of the deceased are remote beneficiaries of the

deceased estate deserving some shares in form of personal estate of the

deceased. The counsel claimed that the current trend of distributing proceeds

in law is to surviving spouse, their children and the surviving parents if any.

In this case both parents of the deceased were deceased and the union with

the respondent was not blessed with any issue. The surviving spouse, in law

is the sole heir to his wife's property even employment benefits.

Starting with the argument that the district court magistrate was wrong to

distribute the assets of the deceased to the heirs, records in the district court

judgment shows the learned magistrate stated that he recognized the sisters

and brothers of the deceased as remote beneficiaries, thus the siblings

deserved to get a share in the deceased's personal properties, that is bank

accounts and other employment benefits. This, in my considered view does

not fit the descriptor of distribution of the deceased properties or estate. It is

clear that there was a dispute regarding the properties forming part of the

estate as was the issue of who are the entitled beneficiaries and the court

was supposed to decide on that, and in the end that is what the court did

then it directed the administrator to distribute them to the heirs for the court

does not have powers to distribute the estate of a deceased person. This

position was propounded in the case of Mahuza Joseph Mbiso v. Eglah

George Makasi, Probate Appeal No, 1 of 2015. it was state that;

'Courts have no power to distribute the estate o f a

deceased person, the power for distribution is vested to
the administrator o f the deceased estate under the Probate
and Administration Act, Cap. 352... The District Court after
it found that the disputed house is the property of the
deceased then it should iet the administrator to perform its
function. '

In that regard I also find this ground of appeal as lacking in merit since the

court did not distribute any property rather it determined the issues as regards

to which assets were part of the estate and who are the heirs entitled then

went on to order the Administrator appointed to divide the estate to the heirs

entitled.

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With regard to the proper shares of the heirs the Appellant was of the view

that the court failed to acknowledge proper shares of the beneficiaries with

respect to the ISA 1865. On the other hand the Respondent avers that when

property is jointly owned and one of the spouse dies, the right person to

inherit is the deceased's widow. He has referred to the case of Juma Rhisi

Nyanyange v. Shekhe Faris (supra) and section 26 and section 43 of the

ISA 1865. He stated further that the court was wrong to say that the

deceased's siblings are remote beneficiaries, as a matter of fact they did not

deserve the proceeds in bank accounts and employment benefits. The court

in arriving at the conclusion it did wad led by the evidence adduced by the

parties and recognized the deceased's siblings as remote beneficiaries who

deserve some share from her personal properties. I see no fault in this there

being no one that is being disinherited by the said finding.

On ground five and six which were consolidated to become the fourth ground

of appeal, the counsel for the Appellant disputes the trial magistrates' finding

at page 6 of the judgment that the landed properties listed are jointly acquired

by the deceased and the Respondent, hence they are matrimonial property.

He avers that the Respondent's affidavit filed on 06 September, 2021 deponed

under paragraph 9(a) that the properties are exclusively owned by his

deceased wife and there was no anywhere he pleaded the existence of

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matrimonial properties or any jointly acquired matrimonial property thus the

same cannot be an issue to be considered by the court as the trial magistrate

did on page 2 of the judgment by adding what was not in the pleadings. He

maintained that the law is settled, parties are bound by their pleadings unless

they acquire leave to amend them but the Respondent never amended

paragraph 9(a) in the Supplementary Affidavit to support Caveat, therefore

the Petitioner was taken by surprise by the issue of matrimonial properties.

The Appellant's submission also contended that the Respondent did not

establish or prove facts by tendering any evidence to ascertain if at all the

said properties are matrimonial. To support his contention, counsel cited the

case of Nacky Esther Nyange v. Mihayo Marijani Wilmore, Civil Appeal

No. 169 Of 2019 where the Court of Appeal discussed the requirement of

proof as regards matrimonial property to cement his argument. Thus, he

argued that the trial magistrate erred to rule that the landed properties were

matrimonial.

Counsel concluded that as held in Benson Benjamini Mengi and Others

v. Abdiel Reginald Mengi and Another (supra) that the law is certain that

if the properties are matrimonial, the share of the surviving spouse should be

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ascertained so that the share of the deceased could be put on the estate and

be administered.

Submitting on the fourth ground of appeal the counsel for the Respondent

contended that what the Appellant did was to twist the words to favour her

illegal discourse and more lies. The Respondent's counsel submitted that this

was discovered through perusal of the court file that there was allegation that

the deceased's estate was individually owned and she left no survivor with life

interest over her estate. Since it was in the Appellant's Affidavit the

Respondent had to produce evidence to show his relationship to the deceased

and the estate which was that of a husband and wife.

With regard to the fourth ground of appeal the Respondent contended that

PW1 (the Appellant) testified that she was close with the deceased therefore

she knows all her properties. She also acknowledged the Respondent as the

deceased's' widower and admitted that he was living with his wife until her

death. However, the Appellant did not produce any document to show that

her deceased sister had property other than one in the marriage with the

Respondent. At page 4 and page 5 of the trial courts judgment, the

Respondent (DW1) testified that after marrying the deceased in 1988 they

lived together happily for 26 years, until her death. He testified on how they

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®ULL
lived and the properties they acquired, there was no evidence that

contravened this testimony. The same also applies to the testimony of DW2

one Rodgers Acquirine Tarimo.

As regards to the deceased's estate being individually owned, the records of

the lower court depict that paragraph 9(a)of the Respondent's Affidavit was

to the effect that he was surprised to get the information that the deceased's

estate was individually owned by the deceased and left no survivors with life

interest over her estate which the Appellant had in paragraph 8 of her Counter

Affidavit. It is certain that the Respondent was disputing that allegation, he

did not state that the deceased owned the properties in the said estate alone.

It is my view that the Appellant on the other hand misconceived the contents

of that paragraph as such the assertion is unjustified. Thus, the consolidated

fourth ground of appeal also fails for lacking merit.

On the seventh ground of appeal which has now become the fifth and last

ground, it was the submission of the Appellant's counsel that the trial

magistrate failed to interpret the evidence presented in the court. He

supported his argument by citing section 110 of the Evidence Act, Cap 6, R.E

2022 which provides that who alleges a fact and wants judgment in his favour

must prove the same.

He also went on to submit that the law directs further that the burden of proof

never shifts to the other party until who alleges the existence of a fact

establishes the same as it was held in the Court of Appeal case of Paulina

Samson Ndawavya v. Theresia Madaha, Civil Appeal No 45 Of 2017.

Therefore, the Appellant argued that the court should have not required them

to prove that the landed properties are matrimonial properties yet it was the

Respondent who was alleging that and did not tender anything to prove

ownership of the properties. Counsel also added that in his Affidavit,

paragraph 9(a) the Respondent affirmed that the deceased estate is

individually owned and left no survivor with life interest over the estate

therefore, since an Affidavit amounts to pleadings and parties are bound by

their pleadings it is evident that the estate is individually owned as expounded

in the case of Samwel Kimaro v. Hidaya Didas, Civil Appeal No. 271 of

2018.

The Respondent's counsel disputed the Appellant's contention that the trial

magistrate failed to interpret the evidence presented in court and relied on

weak evidence adduced by the Respondent. He argued that it is the Appellant

who claims to have right on her deceased sister's estate, also she is the one

alleged that her sister owned property individually in paragraph 9 of her

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Affidavit therefore the burden of proof is on her and not that of the

Respondent.

He fortified his argument with reference to the Court of Appeal's decision in

the case of Paulina Samson Ndawavya v. Theresia Thomas Madaha,

Civil Appeal No. 45 Of 2017 and section 52 (b) of the PAEA which makes him

the defendant in the suit thus the burden of proof lies with the Appellant

something that she has avoided and vested to the Respondent.

In the trial courts proceedings, it appears that the Respondent testified they

owned the property together with the deceased, they also had joint accounts.

He testified on how they acquired the landed properties after their marriage.

The district court considered the Respondent's testimony and reached a

conclusion that the properties in question are matrimonial. Therefore, the

Appellant's contention that Respondent did not prove anything regards the

properties in question lacks merit and consequently this ground of appeal fails.

Based on what I have elucidated on above, all the grounds of appeal fail,

consequently the Appeal is dismissed, the decision of the District Court of

Kinondoni is upheld and the Respondent who is the Administrator of the estate

of the late Aurelia Chrispine Nawab is ordered to file in the trial court an

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inventory of the estate within 120 days of the date of this judgment. I make

no order as to costs.

A.>rdMARI

JUDGE

24/ 07/2023

Ruling delivered and dated 24th day of July, 2023.

A.A. OMARI

JUDGE

24/ 07/2023

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